EMPLOYMENT AGREEMENT
This
EMPLOYMENT AGREEMENT (the “Agreement”)
is
dated as of October 30, 2008 (the “Effective
Date”)
by and
between OCTAVIAN GLOBAL TECHNOLOGIES, INC., a Delaware corporation (the
“Company”),
and
XXXXXX XXXXXXXXXXXXXX
(the
“Executive”).
WHEREAS,
as of the Effective Date, the Company desires to employ the Executive and to
enter into an agreement embodying the terms of such employment and the Executive
desires to accept such employment and enter into such an agreement on the terms
and conditions contained herein.
NOW,
THEREFORE, in consideration of the premises and mutual covenants herein and
for
other good and valuable consideration, the parties agree as
follows:
1. Term
of Employment.
Subject
to the provisions of Section
5
of this
Agreement, the Executive shall be employed by the Company for a period
commencing on the Effective Date and ending on December 31, 2013 (the
“Term”). The
Term
may be renewed in accordance with a writing executed by both parties hereto.
2. Position.
(a) Duties.
The
principal duties of the Executive shall be to serve in the position of Chief
Executive Officer of the Company and of the Company’s subsidiary, Octavian
International Limited, a privately-held
corporation incorporated under the laws of the United Kingdom (“Octavian
Limited”).
The
Executive shall have the duties and responsibilities delegated to him by the
Company’s Board of Directors (the “Board”),
which
shall be consistent with those duties and responsibilities normally associated
with the position of chief executive officer and highest ranking executive
in
corporations of similar size and nature to the Company, and to render such
other
services as are reasonably necessary or desirable to protect and advance the
best interests of the Company
(b) Devotion
of Time to Company’s Business.
The
Executive shall use his best efforts, skill and abilities to promote and protect
the interests of the Company and Octavian Limited and the Company’s other
subsidiaries and affiliates (sometimes collectively referred to hereafter as
the
“Company
Affiliates”),
and
devote all of his working time and energies to the business and affairs of
the
Company and the Company Affiliates. Notwithstanding anything to the contrary
contained herein the Executive (i) may serve on the boards of additional
companies or organizations and receive compensation for such services rendered;
and (ii) may engage in charitable, civic, fraternal, professional and trade
association activities, provided that in each such case the activities engaged
in by the Executive do not materially interfere with his obligations to the
Company and the Company Affiliates and do not materially reduce the amount
of
his working time devoted to the business and affairs of the Company and the
Company Affiliates
(c) Service
on the Board.
During
the Term, the Company agrees to use its best efforts to cause the Executive
to
be elected to the Board and to nominate the Executive as a member of the
management slate at each annual meeting of stockholders during the Term at
which
the Executive’s election class comes up for election. The Executive agrees to
serve on the Board if elected.
(d) Directors
and Officers Liability Insurance.
The
Executive shall be entitled to the benefit of any directors and officers
insurance coverage which is maintained by the Company and made available to
senior executives of the Company. The organizational documents of the Company
shall contain provisions requiring it to provide the Executive the maximum
indemnity protection allowed under applicable law.
3. Compensation
and Benefits.
(a) Base
Salary.
The
Executive shall be paid a base salary during the Term, in consideration for
his
services provided to the Company and the Company Affiliates, at the rate of
Three Hundred Thousand Euros (€300,000) per
annum
(the "Base
Salary"),
payable in accordance with the Company’s normal payroll practices.
(b) Bonus.
(i)
Earn
Out.
In
addition to the Base Salary payable to the Executive hereunder, the Company
shall issue to the Executive shares of the Company’s common stock, par value
$0.001 per share (”Common Stock”), subject to the Company’s achieving not less
than the following earnings before interest, tax, depreciation and amortization
(“EBITDA”),
as
reported in the Company’s audited financial statements for the applicable
periods described below:
Year
Ended December 31,
|
EBITDA
|
Number of Shares of Common
Stock
|
|||||
2008
|
-0-
|
214,000
|
|||||
2009
|
$
|
9,200,000
|
642,000
|
||||
2010
|
$
|
16,500,000
|
428,000
|
||||
2011
|
$
|
21,900,000
|
428,000
|
||||
2012
|
$
|
27,100,000
|
428,000
|
||||
2013
|
$
|
35,726,016
|
640,000
|
2
Shares
of
Common Stock shall only be issued to the Executive, with respect to any year,
to
the extent that the Company has reported EBITDA of at least the amount set
forth
for that year. The Company’s failure to achieve the EBITDA set forth above for
any applicable year shall not preclude the Executive from receiving Common
Stock
for any future years, to the extent that the applicable EBITDA amounts are
achieved for any such future years. In the event that the Executive is entitled
to the issuance of shares of Common Stock for any year provided herein, the
Company shall issue a certificate to the Executive for the applicable number
of
shares on or before the earlier of ten (10) days after (i) the date of filing
of
the Company’s Annual Report on Form 10-K for the applicable year or (ii) the
100th
day
after the end of the applicable year.
(ii)
Warrant.
In
addition to the Base Salary payable to the Executive and any other compensation
payable to the Executive hereunder, the Company, on the Effective Date, shall
issue to the Executive a warrant, in the form of Exhibit
A
annexed
hereto (the “Warrant”)
pursuant to which the Executive shall have the right, for a period of seven
(7)
years after the Effective Date, to purchase up to 2,720,833 shares of Common
Stock at an exercise price of $3.10 per share, subject to certain adjustments
as
provided in the Warrant.
(iii)
Additional
Compensation.
In
addition to the Base Salary payable to the Executive hereunder and any other
compensation payable to the Executive hereunder, the Executive also shall be
entitled to receive additional compensation, in consideration for his services
provided to the Company and the Company Affiliates, at such times and in such
amounts as shall be determined in the sole discretion of the Board or any
committee of the Board which determines such compensation. The Board shall
conduct a review not less than once each year, and such additional compensation,
if any, shall be based on, among other things, the Executive’s and the Company’s
performance.
(c) Stock
Options, Restricted Stock Awards, etc.
In
addition to the other compensation payable to the Executive hereunder, the
Executive shall also be entitled to receive grants of stock options, restricted
stock and/or any other equity incentive awards available to senior executives
of
the Company, under equity incentive plans adopted by the Company, at such times
and in such amounts as shall be determined in the sole discretion of the Board
or any committee of the Board which determines such equity grants.
(d) Withholding.
All
salaries, bonuses and other benefits payable to the Executive shall be subject
to payroll and withholding taxes as may be required by law. The Executive shall
be responsible to pay any income taxes with respect to the Company’s provision
of benefits payable or made available to the Executive hereunder.
4. Employee
Benefits; Business Expenses.
(a) Employee
Benefits.
During
the Term, the Executive and his dependents shall be entitled to participate
in
the Company’s welfare benefit plans, fringe benefit plans and any qualified or
non-qualified retirement plans (the “Company
Plans”)
as in
effect from time to time (collectively, the “Employee
Benefits”),
on
the same basis as those benefits are made available to the other senior
executives of the Company, in accordance with the Company’s policies as in
effect from time to time.
3
(b) Perquisites.
During
the Term, the Executive shall be entitled to receive such perquisites as are
made available to other senior executives of the Company in accordance with
the
Company’s policies as in effect from time to time as determined by the Board;
provided that the Executive shall be entitled to not less than four (4) weeks
of
paid vacation per annum, which shall be subject to the Company’s vacation policy
applicable to the other senior executives of the Company and in accordance
with
the Company’s policies as in effect from time to time.
(c) Life
Insurance.
During
the Term, the Company will reimburse the Executive for a policy or policies
insuring the life of the Executive for a face amount up to a maximum of
US$10,000,000; provided,
however,
that
the Company shall not be required to reimburse the Executive for premiums in
excess of US$50,000 per annum.
(d) Cell
Phone.
During
the Term, the Company will reimburse the Executive for all reasonable charges
in
connection with his use of one (1) cell phone.
(e) Expenses.
The
Executive shall be entitled to reimbursement for reasonable and necessary
business expenses incurred by him in the performance of his duties and
responsibilities to the Company and the Company Affiliates, in accordance with
the Company’s reimbursement and expenses policies, as in effect from time to
time, including the Company’s rules regarding proper documentation.
5. Termination.
(a) Definitions.
For
purposes of this Agreement:
Cause”
shall
mean (i) the Executive’s willful and continued failure to perform his material
duties with respect to the Company or the Company Affiliates as provided
hereunder which continues beyond ten (10) days after a written demand for
substantial performance is delivered to him by the Board; (ii) the willful
or
intentional engaging by the Executive in conduct that causes material and
demonstrable injury, monetarily or otherwise, to the Company; (iii) the
conviction by the Executive of a crime constituting a felony or a misdemeanor
involving moral turpitude; (iv) the possession or use of illegal drugs or
prohibited substances, the excessive drinking of alcoholic beverages on a
recurring basis, in either case, which impairs the Executive’s ability to
perform his duties hereunder or the appearance during hours of employment on
a
recurring basis of being under the influence of such drugs, substances or
alcohol; or (v) the Executive shall have committed any material act of
malfeasance, disloyalty, dishonesty or breach of trust against the
Company.
“Date
of Termination”
shall
mean the date the Notice of Termination is given to the respective party;
provided, however, that with respect to a termination for Cause by the Company,
the Date of Termination shall not occur prior to the expiration of any
applicable cure period.
“Disability”
shall
mean the Executive has become physically or mentally incapacitated and is
therefore unable for a period of three (3) consecutive months to perform
substantially all of the material elements of his duties with the Company or
any
Company Affiliate. Any question as to whether the Executive has a Disability
as
to which he (or his legal representative) and the Company cannot agree shall
be
determined in writing by a qualified independent physician mutually acceptable
to the Executive (or his legal representative) and the Company. If the Executive
(or his legal representative) and the Company cannot agree as to a qualified
independent physician, each shall appoint such a physician and those two
physicians shall select a third who shall make such determination in writing.
The determination of whether the Executive has a Disability made in writing
to
the Company and the Executive shall be final and conclusive for all purposes
of
this Agreement.
4
“Good
Reason”
shall
mean (i) the Company’s breach of any of its material obligations or covenants
set forth in this Agreement, (ii) a material diminution in the title of the
Executive’s position with the Company or a material reduction of the duties or
responsibilities of the Executive, (iii) a reduction in Base Salary or any
material benefits provided to the Executive, (iv) the assignment to the
Executive of any duties or responsibilities that are inconsistent, in any
significant respect, with his position; (v) the Company’s relocation of the
place where the Executive is to render his services to a location more than
one
hundred twenty five (125) miles from its current location, or (vi) any action
by
the Company which materially adversely affects the ability of the Company or
the
Executive to perform their respective obligations hereunder in a manner
substantially consistent with how such obligations were performed immediately
prior to the occurrence of such action.
“Notice
of Termination”
shall
mean a notice which shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of employment under
the
provision so indicated, and shall be communicated, in writing, to the other
party hereto in accordance with the provisions of Section
10(g)
hereafter.
(b) By
the
Company for Cause or by the Executive Without Good Reason.
(i)
The
Term and the Executive’s employment hereunder may be terminated by the Company
for Cause, immediately upon the delivery of a Notice of Termination by the
Company to the Executive (except where the Executive is entitled to a cure
period, in which case such Date of Termination shall be upon the expiration
of
such cure period, if such matter constituting Cause is not cured) and shall
terminate automatically upon the Executive’s resignation (other than for Good
Reason or due to the Executive’s death or Disability).
(ii)
If
the Executive’s employment is terminated by the Company for Cause, or if the
Executive resigns other than for Good Reason, the Executive shall be entitled
to
receive:
(A)
any
accrued but unpaid Base Salary through the Date of Termination;
(B) reimbursement
for any unreimbursed business expenses incurred by the Executive in accordance
with Company policy referenced in Section
4
above
prior to the Date of Termination (with such reimbursements to be paid promptly
after the Executive provides the Company with the necessary documentation of
such expenses to the extent required by such policy); and
(C) such
Employee Benefits, if any, as to which the Company may be entitled upon
termination of employment hereunder (including under the applicable provisions
of Consolidated Omnibus Budget Reconciliation Act of 1985, as amended.
Following
the Executive’s termination of employment by the Company for Cause or if he
resigns other than for Good Reason, except as set forth above or as required
by
applicable law, the Executive shall have no further rights to any compensation
or any other benefits under this Agreement.
5
(c) Death
or Disability.
The
Executive’s employment hereunder shall terminate upon the Executive’s death and
may be terminated by the Company, within ten (10) days after the delivery of
a
Notice of Termination by the Company to the Executive (or his legal
representative) in the event of the Executive’s Disability. Upon termination of
the Executive’s employment hereunder for either Disability or death, the
Executive shall be entitled to receive the same payments and other items as
set
forth in clause (ii) of Section
5(b)
hereof
and, in addition, accrued but unpaid vacation time, if any. Following the
Executive’s termination of employment due to death or Disability, except as set
forth herein or as required by applicable law, the Executive shall have no
further rights to any compensation or any other benefits under this
Agreement.
(d) By
the
Company without Cause; By the Executive for Good Reason.
The
Executive’s employment hereunder may be terminated by the Company without Cause
or by the Executive for Good Reason at any time, upon delivery of a Notice
of
Termination by the applicable party at least thirty (30) days prior to the
Date
of Termination. If the Executive’s employment is terminated by the Company
without Cause or by the Company for Good Reason, the Executive shall be entitled
to receive the same payments and other items as set forth in clause (ii) of
Section
5(c)
hereof
and, in addition, any Base Salary that would have otherwise been payable to
the
Executive from the Date of Termination through the end of the then current
Term had
the
Executive’s employment not been terminated prior to the expiration of the then
current Term (hereinafter
referred to as the “Termination
Payment”).
In
addition, from the Date of Termination until the end of the period for which
the
Termination Payment is due hereunder, (x) the Company shall reimburse the
Executive, on a monthly basis, for any amounts paid by him for health insurance
benefits, up to a maximum amount per month equal to the monthly payments made
by
the Company, on the Executive’s behalf, under the Company’s then current health
insurance plan and (y) the Executive shall continue to have the right to be
issued shares of Common Stock, pursuant to the earn out provisions of Section
3(b)(i) hereof, with respect to each year through the year ending December
31,
2013. Following the Executive’s termination of employment by the Company without
Cause or by the Executive for Good Reason, except as set forth herein, the
Executive shall have no further rights to any compensation or any other benefits
under this Agreement.
(e) Payment
of Amounts Owed upon Termination of Employment.
Any
amounts payable to the Executive for accrued but unpaid Base Salary and accrued
and unpaid vacation time through the Date of Termination shall be paid within
ten (10) business days after the Date of Termination. Any Termination Payment
that is payable to the Executive hereunder shall be payable, at the sole
election of the Company, either (i) on the normal payroll dates from the Date
of
Termination through the original expiration date of the then current Term or
(ii) in one (1) lump-sum cash payment within thirty (30) days after the Date
of
Termination.
6
6. Restrictive
Covenants.
(a) Non-solicitation.
The
Executive agrees that during the Term and for a period of twelve months (12)
months thereafter,
he will not, directly or indirectly including through any other person or entity
(i) solicit, raid, entice or induce any person or entity who is at such time
or
was within six (6) months prior to such date, a client or customer of the
Company or a Company Affiliate to become a customer for, the same or similar
services or products which it received or purchased from the Company or a
Company Affiliate, for himself or any other person or entity, (ii) approach
any
such person or entity for such purpose or authorize or knowingly approve the
taking of such actions by any other person or entity for any other person or
entity, (iii) influence or attempt to influence any client or customer of the
Company or a Company Affiliate to divert its business or patronage from the
Company or a Company Affiliate to any other person, (iv) make any statement
or
do any act intended to cause existing or potential clients or customers of
the
Company or a Company Affiliate to make use of the services or purchase the
products of any competitive business or (v) hire, solicit, raid, entice or
induce or attempt to induce any employee of the Company or a Company Affiliate
to be employed by any other person or entity.
(b) Non-competition.
During
Executive's employment hereunder and for a period of twelve (12) months
thereafter in the event that the Executive’s employment is terminated for any
reason other than by the Company without Cause or by the Executive for Good
Reason, without the prior written consent of the Company, Executive shall not
directly or indirectly engage in a Competitive Business in any country in which
the Company or any Company Affiliate conducts business. For the purpose of
this
Agreement “Competitive Business” means any business involved in providing
products or services relating to (i) gaming machines for casinos or otherwise,
(ii) products used in the lottery industry and/or (iii) any additional business
conducted by the Company and/or any Company Affiliate, in the future.
Notwithstanding the foregoing, the Executive may acquire securities in
Competitive Businesses that are publicly-held companies that will not be
significant and that, in any event, will not exceed two percent (2%) of any
outstanding class of equity of any such company
7
(c) Confidential
Information.
(i)
Agreement
to Preserve Confidentiality.
The
Executive shall maintain in confidence and shall not, either during the Term
or
at any time after his employment with the Company, except as permitted under
the
terms of this Agreement or as otherwise agreed to by Company, communicate or
disclose to, or use for the benefit of the Executive or any other person or
entity, any proprietary or confidential information, trade secret or know-how
belonging to Company or a Company Affiliate (collectively, the "Confidential
Information"),
whether or not such Confidential Information is in written or permanent form,
except to the extent required to perform his duties described in this Agreement.
Such Confidential Information includes, but is not limited to, all business
information, trade secrets, information about products, processes and services,
technological information, intellectual property, confidential records, pricing
information, accounting, merchandising, or marketing information, sales
techniques, client, customer or manufacturer lists, information about client
requirements, terms of contracts with suppliers and clients, internal business
procedures, business methods used or developed by or for the Company pr a
Company Affiliate, computer codes, hardware system information, planning and
financial information, product development plans, marketing plans and future
business plans, and Confidential Information of customers or other third parties
that has been disclosed to the Company or a Company Affiliate in confidence.
Notwithstanding the foregoing, the term Confidential Information shall not
include any information that (i) is or becomes in the public domain, including
information that is publicly known or generally utilized by others engaged
in
the same business as the Company or a Company Affiliate, other than as a result
of a disclosure in violation of this Agreement; (ii) is known by the Executive
prior to his employment with the Company or is developed by Executive outside
the scope of his duties, on behalf of Company or any Company Affiliate, without
using any Confidential Information; or (iii) is required to be disclosed by
the
Executive by law, provided that the Executive shall provide the Company with
prompt written notice of any such requirement so that the Company may seek
a
protective order or other appropriate remedy, if it so chooses. In the event
that such protective order or other remedy is not obtained, or the Company
chooses not to seek such relief, the Executive agrees to furnish only that
portion of the Confidential Information which the Executive is advised by
written opinion of counsel is legally required to be disclosed and the Executive
agrees to exercise his best efforts to obtain assurance that confidential
treatment will be accorded such Confidential Information. The foregoing
obligations with respect to the Confidential Information extends to information
belonging to customers and suppliers of the Company and the Company Affiliates
who may have disclosed such information to the Company or any Company Affiliate
or the Executive as a result of the Executive’s status as an employee of the
Company. In addition to the foregoing, unless the Executive receives permission
from the Company to do so, he will not: (i) remove any Confidential
Information from the premises of the Company or any Company Affiliate;
(ii) copy or reverse engineer any Confidential Information; or
(iii) keep any Confidential Information in his possession.
(ii)
Return
of Property.
Upon
the termination of the Executive’s employment, or at any time when so requested
by the Company, the Executive agrees to promptly return all documents of the
Company and the Company Affiliates and any other property in the Executive’s
possession or control belonging to Company or any Company Affiliate, and any
other materials containing Confidential Information, including all copies of
same, and records, notes, compilations or other matter relating
thereto.
(d) Ownership
of Product Ideas and Assignment.
(i)
Product
Ideas.
The
Executive will maintain current and adequate written records on the development
of, and disclose to Company, all Product Ideas (as herein defined).
“Product
Ideas”
shall
mean all ideas, potential marketing and sales relationships, inventions,
copyrightable expressions, research, plans for products or services, marketing
plans, original works of authorship, know-how, trade secrets, information,
data,
developments, discoveries, improvements, modifications, technology and designs,
whether or not eligible for patent or copyright protection, made, conceived,
expressed, developed, or actually or constructively reduced to practice by
the
Executive solely or jointly with others during the Term.
(ii)
Ownership
of Product Ideas and Assignment.
The
Executive acknowledges and agrees that the Product Ideas and any resulting
patents or trademarks shall be the exclusive property of the Company, and that
all of said Product Ideas shall be considered as "work made for hire" belonging
to the Company. To the extent that any such Product Ideas, under applicable
law,
may not be considered work made for hire by the Executive for the Company,
the
Executive hereby assigns and, upon its creation, automatically and irrevocably
assigns to the Company, without any further consideration, all right, title
and
interest in and to such Product Ideas, including, without limitation, any
copyright, other intellectual property rights, all contract and licensing
rights, and all claims and causes of action of any kind with respect to such
materials. The Company shall have the exclusive right to use the Product Ideas,
whether original or derivative, for all purposes without additional compensation
to the Executive. At the Company’s expense, the Executive will assist the
Company in every proper way to perfect the Company’s rights in the Product Ideas
and to protect the Product Ideas throughout the world, including, without
limitation, promptly executing and delivering such patent, copyright, trademark
or other applications, assignments, descriptions and other instruments and
to
take such actions for and on behalf of the Executive as may be reasonably,
necessary, or proper in the reasonable opinion of the Company to vest title
to
and/or defend or enforce the rights of the Company in the Product
Ideas.
8
(iii)
Certain
Exceptions. Notwithstanding
anything to the contrary contained herein, the provisions of this Section
6(d)
shall
not apply to developments which do not relate to the business or research and
development of the Company or the Company Affiliates and which are made and
conceived by the Executive not during normal working hours, not on the premises
of the Company or any Company Affiliate and not using the tools, devices,
equipment or supplies of the Company or any Company Affiliate or any
Confidential Information.
(e) Scope.
In the
event that any of the provisions of this Section
6
shall be
adjudicated to exceed the time, geographic or other limitations permitted by
applicable law in any jurisdiction, then such provision shall be deemed reformed
in any such jurisdiction to the maximum time, geographic or other limitations
permitted by applicable law.
(f) Injunctive
Relief.
Without
intending to limit the remedies available to the Company, the Executive agrees
that damages at law will be an insufficient remedy to the Company in the event
that the Executive violates any of the terms of this Section
6,
and
that the Company may apply for and obtain immediate injunctive relief in any
court of competent jurisdiction to restrain the breach or threatened breach
of,
or otherwise to specifically enforce, any of the agreements and covenants
contained herein, without the requirement of having to post bond. The parties
hereto understand that each of the agreements and covenants of the Executive
contained in those sections are an essential element of this Agreement and
agree
that the obligations of the Executive hereunder will survive the termination
of
this Agreement.
7. Representations,
Warranties, Covenants and Indemnification.
(a) Company.
(i) The
Company is not a party to any existing agreement which would preclude or prevent
it from entering into this Agreement with the Executive.
(ii) The
Company has the full legal right, power and authority to enter into this
Agreement with the Executive and has obtained all necessary approvals from
third
parties, to the extent required.
(b) Executive.
(i) The
Executive is not a party to any existing agreement which would preclude or
prevent him from entering into this Agreement with the Company.
9
(ii) The
Executive will not use any Product Ideas, the rights to which are owned by
any
former employer of the Executive or other person from whom the Executive has
not
obtained all required rights, and all Product Ideas developed by the Executive
while employed with the Company shall be original to the Executive or developed
in corroboration with other employees of the Company, and shall not infringe
upon the intellectual property rights of any third party.
8.
|
Indemnification.
|
(a) By
the
Executive.
The
Executive agrees to indemnify and hold the Company and the Company Affiliates,
and each of their officers, directors, employees, agents and representatives
harmless from and against any losses, claims, damages, liabilities, settlement
costs and expenses including, without limitation, reasonable attorneys’ fees
relating to any action or claim arising from Executive’s breach of any of his
representations and warranties contained herein or the Executive’s acceptance of
employment with the Company.
(b) By
the
Company.
(i) The
Company agrees to indemnify and hold the Executive harmless from and against
any
losses, claims, damages, liabilities, settlement costs and expenses including,
without limitation, reasonable attorneys’ fees relating to any action or claim
arising from the Company’s breach of any of its representations and warranties
contained herein.
(ii)
The
Company hereby agrees to indemnify and hold the Executive harmless from and
against any losses, claims, damages, liabilities, settlement costs and expenses
including, without limitation, reasonable attorneys’ fees relating to any action
or claim by reason of the fact that he is or was a director, officer or employee
of the Company or any Company Affiliate, or is or was serving at the request
of
the Company or any Company Affiliate as a director, officer, manager, employee
or agent of another corporation, limited liability company, partnership, joint
venture, trust or other enterprises, to the fullest extent permitted under
Delaware law, as the same exists or may hereafter be amended; and the Company
further covenants and agrees that it shall, unless not permitted under Delaware
law, advance all attorneys’ fees and costs associated with the indemnification
of the Executive in connection with any such action or proceeding.
9. Arbitration.
Except
with respect to the restrictive covenants referenced in Section
6
hereof,
any other dispute arising out of or asserting breach of this Agreement, or
any
statutory or common law claim by the Executive relating to his employment under
this Agreement or the termination thereof (including any tort or discrimination
claim), shall be exclusively resolved by binding statutory arbitration in
accordance with the Employment Dispute Resolution Rules of the American
Arbitration Association. Such arbitration process shall take place in New York,
New York. A court of competent jurisdiction may enter judgment upon the
arbitrator’s award. Each party shall pay the costs and expenses of arbitration
(including fees and disbursements of counsel) incurred by such party in
connection with any dispute arising out of or asserting breach of this
Agreement.
10
10.
|
Miscellaneous.
|
(a) Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York, without regard to conflicts of laws principles
thereof.
(b) Entire
Agreement/Amendments.
This
Agreement contains the entire understanding of the parties with respect to
the
employment of the Executive by the Company. There are no restrictions,
agreements, promises, warranties, covenants or undertakings between the parties
with respect to the subject matter herein other than those expressly set forth
herein. This Agreement may not be altered, modified, or amended except by
written instrument signed by the parties hereto.
(c) No
Waiver.
No
waiver of any of the provisions of this Agreement, whether by conduct or
otherwise, in any one or more instances, shall be deemed or be construed as
a
further, continuing or subsequent waiver of any such provision or as a waiver
of
any other provision of this Agreement. No failure to exercise and no delay
in
exercising any right, remedy or power hereunder will preclude any other or
further exercise of any other right, remedy or power provided herein or by
law
or in equity.
(d) Severability.
In the
event that any one or more of the provisions of this Agreement shall be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions of this Agreement shall not
be
affected thereby.
(e) Assignment.
This
Agreement, and all of the Executive’s rights and duties hereunder, shall not be
assignable or delegable by the Executive; provided,
however,
that if
the Executive shall die, all amounts then payable to the Executive hereunder
shall be paid in accordance with the terms of this Agreement to the Executive’s
devisee, legatee or other designee or, if there be no such devisee, legatee
or
designee, to his estate. This Agreement may be assigned by the Company to a
person or entity which is an affiliate including, without limitation, any
Company Affiliate, and shall be assigned to any successor in interest to
substantially all of the business operations of the Company. Upon such
assignment, the rights and obligations of the Company hereunder shall become
the
rights and obligations of such affiliate or successor person or
entity. Further,
the Company will require any successor (whether, direct or indirect, by
purchase, merger, consolidation, or otherwise) to all or substantially all
of
the business and/or assets of the Company to assume expressly and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place.
As used in this Agreement, “Company”
shall
mean the Company as defined above and any successor to its business and/or
assets which assumes and agrees to perform this Agreement by operation of law,
or otherwise.
11
(f) Set
Off; Mitigation.
The
Company’s obligation to pay the Executive the amounts provided and to make the
arrangements provided hereunder shall not be subject to set-off, counterclaim
or
recoupment, other than amounts loaned or advanced to the Executive by the
Company. The Executive shall not be required to mitigate the amount of any
payment provided for pursuant to this Agreement by seeking other employment
or
otherwise and the amount of any payment provided for pursuant to this Agreement
shall not be reduced by any compensation earned as a result of the Executive’s
other employment or otherwise.
(g) Notices.
For the
purpose of this Agreement, notices and all other communications provided for
in
the Agreement shall be in writing and shall be deemed to have been duly given
when delivered by hand or internationally recognized courier service addressed
to the respective addresses set forth below in this Agreement, or to such other
address as either party may have furnished to the other in writing in accordance
herewith, except that notice of change of address shall be effective only upon
receipt.
If
to the
Company:
c/o
Octavian International Limited
Bury
House
0-0
Xxxx
Xxxxxx
Xxxxxxxxx,
Xxxxxx
XX@
0XX
XXXXXX
XXXXXXX
Attention:
Xxxxx Xxxxxxx, President
Fax:
x00
0000 000000
E-mail:
x.xxxxxxx@xxxxxxxxxxxxxx.xx.xx
With
a
copy to:
Xxxxxxx
Xxxxxxxxx & Xxxxx LLP
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000
Attention:
Xxxxx X. Xxxxxxx, Esq.
Fax:
(000) 000-0000
E-mail:
xxxxxxxx@xxxxxxxxxxxxxxxx.xxx
If
to the
Executive:
To
the
most recent address of the Executive set forth in the personnel records of
the
Company.
(h) Prior
Agreements.
This
Agreement supersedes all prior agreements and understandings (including verbal
agreements) between the Executive and the Company regarding the terms and
conditions of the Executive’s employment with the Company.
12
(i) Cooperation.
The
Executive shall provide his reasonable cooperation in connection with any action
or proceeding (or any appeal from any action or proceeding) which relates to
events occurring during the Executive’s employment hereunder, but only to the
extent the Company requests such cooperation with reasonable advance notice
to
the Executive and in respect of such periods of time as shall not unreasonably
interfere with the Executive’s ability to perform his duties with any subsequent
employer; provided, however, that the Company shall pay any reasonable travel,
lodging and related expenses that the Executive may incur in connection with
providing all such cooperation, to the extent approved by the Company prior
to
incurring such expenses.
(j) Execution
and Counterparts.
This
Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to
the
other party, it being understood that the parties need not sign the same
counterpart. In the event that any signature is delivered by facsimile
transmission or by e-mail delivery of a “.pdf” format data file, such signature
shall create a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) with the same force and effect as if such
facsimile or “.pdf” signature page were an original thereof.
(k) Fees
and Expenses.
In the
event that the Company shall fail or refuse to make or authorize any payment
of
any amount otherwise due to the Executive hereunder within the appropriate
period of time, then the Company shall reimburse the Executive for all
reasonable expenses (including reasonable counsel fees) incurred by him in
enforcing the terms hereof, within five (5) business days after demand
accompanied by evidence of fees and expenses incurred. Any reimbursement
hereunder shall be paid to the Executive promptly and in no event later than
the
end of his taxable year next following the taxable year in which the expense
was
incurred.
[Signature
Page Follows]
13
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the
day and year first above written.
By:
|
/s/ Xxxxxx Xxxxxxxxxxxxxx |
Name: Xxxxxx
Xxxxxxxxxxxxxx
|
|
Title:
Chief Executive Officer
|
|
By:
|
/s/ Xxxxx Xxxxxxx |
Name: Xxxxx
Xxxxxxx
|
|
Title: President
|
|
/s/ Xxxxxx Xxxxxxxxxxxxxx | |
14
EXHIBIT
A
Form
of Warrant